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Saturday, September 5, 2015

Barend Vlaardingerbroek: Employees who won’t do their jobs for whatever reason

The furore
over the Kentucky county clerk who refused to officiate in same-sex marriages
and went to jail rather than accept a compromise involving her underlings doing
the job on her behalf brought out the predictable placard-waving groupies
shrieking inane slogans about ‘God’s law’ and religious freedom on the one
hand, and pro-same-sex-marriage clichés (e.g. ‘Love wins’) on the other.

To get an
insight into the real issues involved, let’s change location to the comparative
sanity of Western Europe. There was a very similar case before the European
Court of Human Rights in 2012 (Ladele, one of the ‘and others’ in Eweida and others v UK 2013).

The litigant,
a marriage registrar, had refused to officiate in [same-sex] civil unions(this was before the UK Marriage Act had been
amended to allow same-sex marriage). In both cases, the figure at the centre of
the drama claimed that her Christian beliefs forbad her from taking part in the
official sanction of same-sex relationships and cried foul when her employer
failed to acquiesce.

European
governments followed the proceedings with bated breath and there was an almost audible
sigh of relief when the judgment went against the litigant. Not because of
anything to do with marriage law nor indeed with freedom of religious belief,
but because if it had gone the other way, it would have thrown employment law,
especially concerning State employees, into disarray.

If an
employee can refuse to perform certain duties on the basis of those duties
going against his/her beliefs, job descriptions and employment contracts would
become just about meaningless. They would have to be drafted on an individual
employee basis, and every time there was a change in the law or ministerial
policy affecting those employment conditions, they would have to be
renegotiated.

There are
situations where an employee can be
excused from performing certain duties owing to personal qualms about the
rightness of those duties. Doctors and nurses who harbour objections to
abortion, for instance, are covered by a conscientious-objection clause and no
disciplinary action can be taken against them for refusing to participate in
abortions (unless it is an emergency situation and the pregnant woman is seriously
at risk). However, being a
gynaecologist/obstetrician does not necessarily involve performing abortions as
an integral part of the job. There is
also the pertinent observation that an abortion, as a medical treatment, is not
something that a woman has an enforceable legal right (in the sense of an
entitlement) to.

Being a
registrar of marriages is not in the same league. That person’s routine job is
to officiate at marriages and civil unions, without which the job would not
exist. People moreover have a legal right, upon meeting certain conditions
stipulated by law, to being officially married (or civil-unioned, if that’s the
right word). The registrar is acting as an agent of the State which guarantees
that right.

I do have
some sympathy for cases such as these where the law changed after the
complainant joined the service. A marriage registrar who went into the job
before civil unions or same-sex marriage didn’t have to spare a thought to the
prospect of having to officiate at a ceremony where there’s two grooms or two
brides rather than a groom and a bride. For a person who (like me) is dead-set
against same-sex marriage, or is against same-sex civil unions, it’s a very
bitter pill to have to swallow to be told that s/he now has to officiate at
such proceedings. But it’s a pill s/he has to swallow, or leave the service.
Saying “I won’t do it” amounts to breaching the employment contract, and s/he
has to be prepared to pay the price if that is what s/he does.

I do not
regard it as relevant that the basis of the errant employees’ objections are
religious. If a non-believer with strong objections to same-sex marriage (like
yours truly) were in these women’s shoes, it should make absolutely no
difference. To allow one employee to not perform certain duties because s/he
has religious objections but to not make
the same allowance for another employee whose objections are non-religious would be ‘discrimination
on the basis of religion’ against the latter. Which, one should hope, would not
wash in any Western European court at least.

Incidentally,
doctors and nurses who don’t want to take part in abortions do not have to elaborate
on the reasons for their objection. They can simply say that they are opposed
to the procedure on grounds of conscience and so no distinction is made between
religious and non-religious objections.

All it
really comes down to is State employees refusing to do the job they are paid to
do because they personally disapprove of certain aspects thereof or of certain
instances that may arise in the performance of their duties. But, to labour the
point, a marriage registrar must officiate at marriages and civil unions
whether s/he personally approves of the couple being joined or not. If s/he
can’t handle changes in the law that allow a couple of guys to ‘marry’, s/he
has the option of resigning from that position as marriage registrar. Sounds a
bit rough, perhaps, but consider the shambles that would eventuate if
employees’ contractual obligations were made subject to their personal whims.

Barend
Vlaardingerbroek BSc, BA, BEdSt, PGDipLaws, MAppSc, PhD is Associate Professor
of Education at the American University of Beirut.

2 comments:

Geoffrey John Bourke
said...

I think that in cases like this, the employee who feels he or she cannot carry out a duty for reasons of conscience should simply resign. There was a similar problem with persons who were called up, but refused to go to war. They were not able to resign; instead they were prosecuted as "conscientious objectors". Otherwise they would have encouraged others to resign, others who merely did not want to go onto the battle-field because they might be hurt or killed. But the clerk in this case faced no such action.

Nicely put. Sadly this woman got too much publicity for being negligent in her duties. Like the expression goes ' If you can't stand the heat - get out of the kitchen'. This whole debate goes back in history. Did the registrars believe in female suffrage when that law came into effect a hundred years or more ago? There are many Moslem cooks who cook pig meats. There are probably many more who are not employed because they would find it repulsive.An employee who is unwilling to accept change is not a good employee. She may be a hero in her church; but civilly disobedient.

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